Allowed

Dr Sunanda W/O Vasant Kabbur v. State of Karnataka

Karnataka HC14 Sept 2022CRL.P/102563/2022

Case brief

AI extract

What is this about?

A criminal petition under Section 482 Cr.P.C. filed by a medical practitioner to quash proceedings under the PCNDT Act. The High Court held that proceedings were liable to be quashed as the complainant lacked proper authorization and the mandatory procedure of seeking explanation was not followed, reserving liberty for the complainant to proceed legally.

What did the court decide?

The proceedings in PC No. 73/2016 dated 15.04.2016 pending on the file of APMC Police Station, Belagavi, were quashed.

Dr Sunanda W/O Vasant Kabbur Vs State of… — Pension and Retirement Benefits | Karnataka HC (2022)

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CRL.P No. 102563 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON'BLE MS. JUSTICE J.M.KHAZI

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CRIMINAL PETITION NO. 102563 OF 2022 (482-)

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BETWEEN:

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DR. SUNANDA W/O. VASANT KABBUR, AGE. 40 YEARS, OCC. MEDICAL PRACTITIONER, BHUMI WOMEN’S CARE HOSPITAL, MAIN ROAD, SADASHIV NAGAR, BELAGAVI-590001.

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…PETITIONER

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(BY SRI. NEELENDRA D. GUNDE., ADVOCATE) AND:

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STATE OF KARNATAKA APMC YARD P.S., BELAGAVI, THROUGH DISTRICT APPROPRIATE AUTHORITY, PRECONCEPTION AND PRE-NATAL DIAGNOSTICS, TECHNIQUES PROHIBITION OF SEX SELECTION (PCNDT) OF BELAGAVI, SUB DIVISION BELAGAVI, REPRSENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING DHARWAD.

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DISTRICT HEALTH OFFICER BY DR. APPASAHEB S/O. MARURI NARATTI, AGE. 60 YEARS, OCC. DISTRICT HEALTH AND FAMILY OFFICER, VACCINE DEPOT, TILAKAWADI, BELAGAVI-590001.

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…RESPONDENTS

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(BY SMT. GIRIJA S. HIREMATH., HCGP)

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CRL.P No. 102563 of 2022

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THIS CRIMINAL PETITION IS FILED U/S. 482 OF CR.P.C., SEEKING TO QUASH THE ORDER DATED 15.04.2016 IN P.C. NO.73/2016 THEREBY THE COURT BELOW REFERRED THE MATTER TO POLICE INSPECTOR APMC POLICE STATION FOR INVESTIGATION UNDER SECTION 156(3) OF CR.P.C. FOR OFFENCES PUNISHABLE U/S. 19, 23, 29 RULE 9(1), 9(4), 9(6), 9(7), OF PRE-NATAL DIAGNOSTIC TECHNIQUES RPM, ACT 1994, INSOFAR AS PETITIONER/ACCUSED IS CONCERNED.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, COURT PASSED THE FOLLOWING:

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ORDER

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Petitioner who is arraigned as accused has filed this petition under Section 482 of Cr.P.C to quash the criminal proceedings initiated vide order dated 15.04.2016 against her in PC No.73/2016 for the offences punishable under Sections 19, 23 Rule 9(1), 9(4), 9(6), 9(7) of Pre-Natal Diagnostic Techniques (regulation Prevention of Misuse) Act 1994 (for short “the Act”), so far as petitioner is concerned.

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It is the case of the petitioner that she is the Medical Practitioner running Bhoomi Women’s Care Hospital, Belagavi. On 03.02.2016, respondent No.2 filed

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complaint in PC. No. 73/2016 on the file of JMFC-IV Belagavi, against the petitioner alleging the offences punishable under Sections 19, 23 Rule 9(1), 9(4), 9(6), 9(7) of the Act. In the complaint it is alleged that respondent No.2 is working as District Health Officer, Belagavi and he is the appropriate authority under the Act. While conducting survey of Genetic Counseling Centers and Ultra Sound Scanning Centers in Belagavi, he came no know that the petitioner’s hospital is in existence since 4-5 months and the centre has not maintained records properly and the machine was shifted without permission and petitioner has also failed to maintain records as per the provisions of the Act. On 01.02.2016 at 7:00 p.m., complainant along with two others visited the hospital and found the infractions and filed the complaint.

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Respondents have appeared through High Court

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Government Pleader.

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During the course of the arguments learned counsel representing the petitioner submitted that the

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filing of the complaint is contrary to law, facts and material placed on record. The learned Magistrate ought not to have passed the impugned order referring the complainant to the Police for investigation, in the absence of authorization or competent order to file the complaint. Complainant has failed to produce the notification or order of authorization along with the complaint. It is only the Assistant Commissioner or Deputy Commissioner who are authorized to file the complaint.

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The learned counsel for the petitioner further submits that complainant being Government servant, the complaint ought to have been filed through the Public Prosecutor and not by a Private Advocate that too when he has not authorized by appropriate authority to represent the complainant or the Government authorization. The complaint has not complied with the mandatory directions given by the Hon’ble Supreme Court in Priyanka Srivatsava and Another Vs. State of Uttar Pradesh

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CRL.P No. 102563 of 2022

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and Others¹ ( Priyanka Srivatsava’s Case ). As per the

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scheme of the Act Section 17(4), (a), 28 and 29 and rule 9 provides that whenever there is any omission or commission in compliance of the Act or rules, the appropriate authority is required to seek explanation of the defaulter to find out whether there is any criminal intention in such violation. This provision is inserted with an intention that if there is any scope for correction, then the initiation of criminal proceedings could be dropped. Admittedly in the present case no such option is given to the petitioner and on these grounds seeks quashing of the proceedings.

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On the other hand learned High Court Government Pleader while admitting that the required procedure is not followed prays to reserve the liberty to the complainant to proceed in accordance with law.

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Heard the arguments and perused the records.

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1 (2015) 6 SCC 287

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As per the scheme of the Act, more particularly

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Section 28 of the Act, no Court shall take cognizance of the offence under this Act except on a complaint made by the appropriate authority or any officer authorized in this behalf by the Central Government or the State Government as the case may be or the appropriate authority. In the present case though respondent No.2 claims to be the authorized officer, he has not produced any documents to show that he is an authorized officer appointed by the appropriate authority. In the absence of such material, the complainant has failed to show that the complaint is by an appropriate authority or by an authorized officer.

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Admittedly, respondent No.2 is a Government official and he has filed the complaint in exercise of his official duty. Therefore he is suppose to file the complaint through the Public Prosecutor or the advocate through whom the complaint is filed is authorized by the Government or by the appropriate authority to file the complaint. However in the present case the complaint is

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CRL.P No. 102563 of 2022

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being filed through a private advocate. Therefore the trial

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Court has erred in taking the cognizance.

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Whenever the violation of Sections 17(4)a, 28, 29 and rule 9 are alleged, provision is made for seeking explanation from the defaulter to find out whether there is any criminal intention in such violation and also to find out if there is any scope for correction. In other words an opportunity is required to be given to the defaulter to amend the mistakes committed and correct the records. A similar action was challenged on the ground of violation of principles of natural justice in the matter of Dr.Sai W/o. Santosh Shiradkar Vs. State of Maharashtra and Another² ( Dr. Sai’s Case ), on the file of the High Court of Judicature at Bombay at Aurangabad Bench and the proceedings were quashed and this order was up held by the Hon’ble Supreme Court in Special Leave to Appeal (Criminal) CRL.M.P. No.5636/2017 dated 17.04.2017. Thus from the above discussion I hold that the proceedings are liable to be quashed. However, it is

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2 Criminal Writ Petition No.1381/2015

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necessary to reserve the liberty to the complainant to proceed in accordance with law, if so advised and accordingly, I proceed to pass the following:

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ORDER

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Petition filed under Section 482 of Cr.P.C, is

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hereby allowed .

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Proceedings in P.C No.73/2016 dated 15.04.2016, pending on the file of APMC Police Station, Belagavi, is hereby quashed.

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However, the liberty is reserved to the complainant to proceed against the petitioner in accordance with law, if so advised.

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Sd/JUDGE